Bench Memos

O’Connor and the Left

I appeared Friday on Ron Reagan’s MSNBC show opposite Eliot Mincberg from People for the American Way. In seeking to position himself as the picture of moderation, Eliot demonstrated just how far the far left have fallen in the battle over the Courts. He, like the other spokesmen for liberal interest groups over the last 2 days, have been lauding Justice O’Connor as the model for what a good Supreme Court Justice should be, arguing that if the Court were full of Justice O’Connors, all would be right in the world. But Justice O’Connor was hardly the water carrier for the liberals that they would have the world think. Yes, she was a solid vote for abortion rights, was a swing vote on affirmative action in education, and had been a disappointment to conservatives on various social issues of late, but at the same time, she was with the “conservative” majority in crucial decisions limiting federal power to legislate (Morrison and Lopez), upholding school vouchers (Zelman), limiting the ability to sue states in federal court (Seminole Tribe), preserving the Boy Scouts’ ability to determine its own membership and troop masters (Dale), outlawing race-based preferences in government contracts (Adarand), and, at least in some cases, protecting religious speech from government discrimination (Rosenberger). While it is fair to say that Justice O’Connor often did not decide cases on the basis of a clear, discernible principle and that she often drove conservatives nuts, she hardly deserves the place in the liberal pantheon of Bill Brennan, Thurgood Marshall and Ruth Bader Ginsburg. With NARAL and People for the American Way are holding Justice O’Connor out as the kind of jurist that they really want, it would seem that either a) this battle is really all about abortion and nothing else for the left (even though, as Ed Whelan has properly observed, Roe would not be affected by this nomination, or b) the left must be pulling their hair out behind closed doors because they have so massively lost their place at the table of American politics. If the best they think they can do is to preserve the status quo on the many issues where O’Connor joined Scalia, Rehnquist, Thomas and (at times) Kennedy, then it would seem to me that the far left has really slipped as an effective political movement.

Shannen W. Coffin is a contributing editor to National Review. He practices appellate law in Washington, D.C.

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